AXA Insurance UK Plc v Rossiter

On 17 April 2013 Sir Raymond Jack, sitting as a High Court Judge, gave permission to the Claimants to make an application to commit the Defendant to prison for contempt of court.

The application arises out of a personal injury claim by the Defendant in which the Claimants were the third party insurers of the tortfeasor who injured the Defendant in a road traffic accident which occurred on 3 March 2008. Liability for that accident was admitted by the Claimants on 6 May 2008.

On 24 February 2011 the Defendant issued a claim form in the Truro County Court. In June 2011 the Particulars of Claim and First Schedule of Loss were served. In August 2011 the Claimants made a Part 36 offer of £30,000 plus CRU benefits. On 2 November 2011 judgment was entered in favour of the Defendant. In April 2012 directions were given at a Case Management Conference. In May 2012 the Defendant served an updated Schedule of Loss.

On 14 June 2012 the Claimants disclosed to the Defendant surveillance evidence of filming which took place between 14 November 2011 and 20 January 2012. There were 13 days of filming between those dates. In addition there was surveillance filming on 17 and 18 April 2012. On 20 August 2012 the Defendant accepted the Part 36 offer out of time and on 5 September 2012 the proceedings were formally compromised by a Tomlin Order. The Defendant issued the application for permission to bring the present proceedings on 24 January 2013.

In summary the Claimants allege that the Defendant fraudulently exaggerated her claim for gain. There are in total 48 allegations relating to specific statements and representations contained in the Schedule to the Particulars of Contempt which form part of the Particulars of Claim. That Schedule is annexed as Appendix 1 to this judgment.

In paragraph 17 and 18 of the Particulars of Claim it is stated:

In support of the Claimants’ application are two affidavits from the Claimants’ Solicitor, David James Cole. These are dated 23 January 2013 and 22 August 2013. They exhibit the statements of case etc, witness statements and experts’ reports in the County Court proceedings. In addition a bundle of documents, extracted from files of paper provided by the Defendant’s Solicitors in the County Court proceedings (Messrs Nalders), is exhibited.

The Defendant denies the Claimants’ allegations. Affidavit and oral evidence has been given by:

The Defendant herself

Jackson Rossiter, her 21 year old son

Sarah Cochran

Anne Richards.

It is common ground that for the Claimants to establish each contempt alleged they must prove beyond reasonable doubt in respect of each statement:

The falsity of the statement in question

That the statement has, or if persisted in would be likely to have, interfered with the course of justice in some material respects;

That at the time it was made, the maker of the statement had no honest belief in the truth of the statement and knew of its likelihood to interfere with the course of justice.

The Claimants relied substantially on statements made by the Defendant in the following documents:

A report from Dr Neal, Consultant Psychiatrist, dated 11 January 2011

A report from Mr Smith, Consultant Spinal and Orthopaedic Surgeon, dated 17 September 2010

A report from Dr Briscoe, a Consultant Psychiatrist, dated 15/16 December 2011

A report from Dr Blacker, Consultant Psychiatrist, dated 10 April 2012 following a consultation at the Defendant’s home on 23 March 2012

The Defendant’s witness statement dated 16 January 2012

The Defendant’s updated Schedule of Loss, signed by her on 29 May 2012

The Defendant accepted that she had seen the reports of the medical experts instructed on her behalf prior to their service. Apart from one matter in Mr Smith’s report about her getting rid of a dog/dogs, she could not remember if she had corrected anything or not.

The Defendant also accepted that she had signed her witness statement of 16 January 2012 with the Statement of Truth and she understood that the purpose of the witness statement was to evidence what had been happening and for her to say how the accident had affected her. She knew it was for the assessment of her claim. She accepted that somebody with major injury would get more compensation than somebody with a lesser injury. She said she would not have thought like that, but that was correct. She was more concerned about getting treatment. She also accepted that the purpose of the medical reports and the witness statement was to get money and she knew that they would be sent to the Claimants in order that they could value the claim. She accepted it was very important to tell the truth in a witness statement. Her witness statement had been based on documents she had typed and sent to her former solicitors; so it was not a case of words having been put in her mouth. She had understood the importance of telling the whole truth in legal proceedings. She knew that without lawyers telling her.

The Defendant accepted it was a fair summary of the medical reports and of her statement that she was presenting as a lady with permanent severe continuous disability. Her case was that the picture she had presented was correct, save that there was variability in the level of her symptoms. Ms Rossiter said it was her fault that she did not make it clear that sometimes things were better and sometimes worse. She said that she should have told the Doctors and, if she had applied her mind to it, she would have said that on average she was able to do things five or six days a week but that they would exhaust her. She clarified this by saying it was not five or six days every week but five or six days in a monthly cycle. When she could do things she would push herself, since she had been advised by the doctor to do this.

As regards Mr Smith’s report, she said that he had asked him what she could do at that time and he did not question her as to whether there were variables. She said that when Dr Briscoe came to see her she had had a lot of problems and had been in bed just before that for some five weeks. She wasn’t very clear on anything. She had vomited for two weeks, stopped and then started again. I shall return later to the statements she made to Doctor Blacker and her comments upon them.

The Defendant said that the medical reports, her witness statement and Updated Schedule of Loss summarised her true state of health for a great deal of the time. She had continual pain of the same intensity in her back, neck and head. Pain in her elbows, wrist and knees was always present but varied in intensity. She nearly always had pain in her spleen if she was outside or had any anxiety. In her pelvic area she always had some pain, but it was always much worse after periods and the worsening could persist for two to three weeks. She always had headaches in the back of her head and these were always quite heavy pain. In other parts of her head sometimes she had pain and sometimes she did not.

Mr Smith described injuries and symptoms to the neck and head, pain in the elbows, wrists and fingers, pain in the shoulders. She said she could not lift her shoulders up and had problems with her back from the central low back radiating to above and below the iliac crest. She said that she struggled to balance and kept falling over. He noted a letter from her physiotherapist in July 2008 which stated that since the accident she had been suffering from pain in the head, both wrists, both forearms and extreme sensitivity of the entire spine as well as stress incontinence. When examined she was in a continual state of fear and her soft tissues were tender to touch. It was thought by the physiotherapist that psychological treatment rather than physiotherapy would be of more benefit.

The following are some short extracts from Mr Smith’s report:

Dr Neal’s Report

Dr Briscoe’s Report

As I have mentioned, this was signed on 16 January 2012 in the circumstances described above. I shall cite certain important extracts:

In short the Defendant’s case is that the symptoms described and picture presented in the above medical reports and in her witness statement was accurate, save that there were periods when she did not suffer quite as much and where the restriction on her lifestyle was not quite as great. She considers that she suffers from fibromyalgia, but has never had this formally diagnosed. It was mentioned to her by a Spanish doctor in 2008. She said that since Mr Smith’s report in 2010 her suffering has changed because mentally she has gone to pieces and that has affected everything else.

The Defendant denied any dishonesty, whilst accepting that she should have pointed out the variability in her symptoms. Other than that she did not accept that there was anything in the documents which could have misled the Claimants. She stood by the picture generally presented which she accepted was one of “unremitting crippling disability”, save that this was the picture for a lot of the time rather than 100% of the time.

All of the surveillance evidence was viewed in open court with the Defendant stopping the DVD from time to time by raising her hand so as to make a comment. The Claimants’ case is that the surveillance evidence is critical and it is that which demolishes the claim and shows a starkly different picture from the complaints in the medical reports. They say it shows that the Defendant does housework, shops in supermarkets, does school runs, walks her dogs, is out for lengthy periods, probably with friends. They also say that there is no sign whatever of any disability on the videos. As to the Defendant’s case that she has some relatively good days where she can do somewhat more the Claimants’ submissions is:

she never mentioned variability in any relevant document prior to disclosure of the dvd evidence

it is inconceivable that the 13 days of surveillance, which were random and some of which were continuous, should by chance have happened to have been taken on relatively good days

the Defendant has tailored her evidence after seeing the surveillance evidence, and to some extent prior to that date after she saw her solicitor Mr Syer, on 29 March 2012, having previously received a letter from him dated 16 March 2012.

Before I go on to consider the days where there is actual coverage, I wish to mention the fact that there was surveillance on 17 April 2012 and 18 April 2012. There is no evidence that the Defendant left the house on either of those two days. The Claimants suggest that she was perhaps “lying low” during this period. The suggestion is based on Mr Syer’s letter of 16 March 2012 and the meeting between him and the Defendant on 29 March 2012. In the letter Mr Syer wrote:

The second point that needs to be made before detailed consideration of the surveillance, is that the Defendant’s medical records show that since the accident she has regularly been prescribed a cocktail of medication including pain killers, anti-depressants and anti-emetics. The Claimants floated the suggestion with the Defendant that perhaps she has not taken these tablets and was “flushing them down the toilet”. She denied this. I accept her denial.

The third preliminary point is that near the beginning of the Defendant’s cross-examination it was put to her that she very regularly had attended her general practitioner from the date of the accident. The suggestion was some two to three times a month. She said she thought the average was much lower than that. It was then pointed out that the surveillance material was served in June 2012 and from the date acceptance of the Part 36 offer in August 2012 until January 2013 [when the Defendant was served with notice of the Claimants’ application to bring the present proceedings] she had been to the doctor only once for a flu jab. After receiving the notice of application she had recommenced regular attendance. The records support this pattern. However it is interesting to compare the records at the time of the surveillance. There were attendances on 15 November 2011 (by telephone), 16 November 2011 and 18 November 2011 (telephone). The next entry of an attendance by telephone or in person at the general practitioner was 18 April 2012, a gap of five months. Thereafter there are a number of attendances in April and May (23 April, 4 May, 24 May, 25 May). Thus, apart from the two video recordings on 14 November and 16 November 2011, there are no relevant entries in the GP’s records which cover the recordings in December/January 2012. The entries on 15 November and 16 November are in relation to abdominal pain predominantly. The only November entry reporting very severe problems in terms of other pains post dates the November surveillance. It is a telephone entry of 18 November 2011. It is right to say (paragraph 14 of the judgment above) that the Defendant said that when Dr. Briscoe came to see her she had a lot of problems and had been in bed just before that for some five weeks. Dr Briscoe examined at the end of November. Those five weeks would cover the first two days of the surveillance. Nevertheless the entry of 18 November 2011, though it refers to “eight weeks left sided abdo sharp intermittent pain” also says “fibromyalgia symptoms or worse.”

I will not go through the surveillance evidence in enormous detail. It does show the following:

The Defendant leaving home unaccompanied.

The Defendant doing some shopping, albeit occasionally and there is no proof that it is other than for small items.

The Defendant driving, often with her two dogs.

The Defendant walking her dogs (this is clear only on one occasion).

The Defendant collecting her son from school.

The Defendant walking up steps from her home carrying bin bags which have contents of some substance and placing them for collection.

The Defendant walking up the steps carrying other objects for example a broom, a barbecue and a large patio parasol. The last item she carries over her shoulder. She said it had a plastic frame.

The surveillance on 14 and 16 November 2011 was from live operatives who followed the Defendant. Surveillance on the other dates was apparently by means of a fixed camera outside her home. On some days there is a substantial sighting eg. 14 November 2011, 2 January 2012, 16 January 2012. On other days the Defendant is shown hardly to emerge: on 31 December 2011 she is seen once to walk up the steps; on 1 January 2012 she is seen to walk up the steps carrying bin bags; 13 January 2012 she is seen walking to her home carrying a bag in her left hand.

It is conceded that if one compares the DVD evidence with what was said in the Defendant’s witness statement of 16 January 2012 (a surveillance date) and to the Defendant’s medical experts, then the DVDs show that the Defendant was capable of doing things which were not set out (and effectively ruled out) in any of these documents. This is clear from a comparison of my summary of the DVD evidence and of her witness statement and medical reports earlier in this judgment. Most importantly one has to compare, however, the 48 allegations contained in Appendix 1 to this judgment. It is also important to emphasise that the Claimants’ case is anchored on the surveillance, which is why paragraph 12 of the Particulars of Claim predicates all allegations with the words “by November 2011 at the latest and probably much earlier”. The Claimants allege that, by reason of the fact that the Defendant (they say) was dishonest, the Court should find that she was dishonest probably much earlier than the date of the DVD evidence. Further the Claimants ask the Court to infer that the Defendant was generally able to do everything in the 48 allegations. They ask the Court to reject the explanation of good days and bad days as a dishonest reaction by the Defendant tailoring her evidence to the indisputable minimum which the DVDs show.

For reasons which I shall give below I do not find the Defendant to have been dishonest. Her statements to (at least) Dr Briscoe and her witness statement of 16 January 2012 were false in that they did not deal with what she could do (as shown on the surveillance evidence) on good days. It is very difficult for the Court to make a detailed assessment as to the true extent of her disability, but I am not prepared to find in these proceedings that the Claimants have satisfied me beyond reasonable doubt that she could do more than is shown on the surveillance evidence and as explained by Ms Rossiter and her witnesses. I do not find that she generally made false statements to Dr Blacker (I shall deal with this later); nor do I find that she made false statements in her Schedule of Loss dated 29 May 2012.

It is conceded that they would have done so in that the administration of justice would have been interfered with, absence the surveillance evidence, by reason of an increased award of damages or compromise of the Defendant’s claim.

I regard the points made in paragraphs 24 – 26 of this judgment as important background evidence. I accept that there were times when the Defendant was unfit to leave the house and that she was taking regular medication. I appreciate that she had taken anti-depressants prior to the accident, but she was on increased regular medication from the accident and throughout thereafter.

It is correct that the Defendant has never had a proper diagnosis which supports her symptomatology. This is of some importance, but falls a long way short of proving that she is dishonest.

The pattern of the Defendant’s symptomatology, as she stated to the Court, was that she might have vomiting for perhaps two to three weeks of which four to five days would be bad. She would not be able to get out of the house during such a period. However perhaps five or six days every month she would be fit enough to get out and do what she was seen doing on the DVDs. It is of course possible that she was tailoring her evidence to the DVDs, but I am certainly not prepared to find that I am sure that she did so tailor her evidence. Nor am I prepared to find that she was capable of doing much (if anything) more than the DVDs overtly show. This is not just on the basis of her evidence, but on the basis of other evidence from her son Jackson Rossiter and her friends Ann Richards and Sarah Cochran. It is important in my judgment to note that the Defendant is never shown doing anything particularly energetic or strenuous. She always appears to walk relatively slowly and sometimes with difficulty (see for example 13 January 2012). The bag she is often seen carrying is a brown leather bag, described by the Claimants as a rucksack, in which she says she carries incontinence pads and medication, along with some cosmetics.

The line between exaggeration and dishonesty has been explored in a number of cases. They were helpfully summarised by Mr Justice Coulson in Walton v Kirk [2009] EWHC 703 (QB). The Learned Judge said this:

In my judgment the evidence of the Defendant and that of her witnesses at the very least raises considerable doubt as to whether the Defendant was deliberately lying. The Claimants have fallen far short of proving dishonesty to the requisite standard of proof. The words of the trial judge in the case of Ford v GKR Construction may well be a very good reflection of precisely what the situation was for Ms Rossiter.

After her solicitors’ letter of 16 March 2012 the Defendant saw the Claimants’ psychiatrist on 23 March 2012. The Claimants relied as evidence of dishonesty on a number of statements which the Defendant admitted making to Dr Blacker. I have scheduled those statements and my comments upon them in appendix 2 to this judgment. It will be clear from that that I do not regard most of the statements as inaccurate. Those few that are, were not dishonest for the reasons I have just given. Nor do I accept the Claimants’ submission that the Defendant was tailoring her complaints to Dr Blacker because of the contents of the Solicitors’ letter of 16 March 2012.

It will be seen from Appendix 2 that in Dr Blacker’s report what the Defendant said to him was more qualified, because it did make reference to the good and bad days. In my judgment this was because her solicitor had pointed this matter out to her in the letter of 16 March 2012. However it was not a case of her being dishonest before; rather was it a case that he had highlighted, at least partially, to her that there were times when she could do more than she had admitted to and therefore heard the description of the norm, because Mr Syer had questioned it, was now more accurate. I am not persuaded that the Schedule of Loss dated 29 May 2012 (pre disclosure of surveillance evidence) was dishonest. The care claim was as follows:

I have dealt with most, but not all of the points which the Claimants made. Other points were made about the failure to call her friend Ms Greenup and a file note of Mr Syer on 22 May 2012 taking instructions on the Schedule eg. where it states “shopping all done online – save small bits son would get from local shop.” These do not change my judgment in this case.

I have so far made little reference to the witnesses called by the Defendant. I shall not deal with them in great detail. I also accept that some points of merit were made in cross-examination; nevertheless they were in my judgment honest witnesses who were overwhelmingly accurate in their evidence. I shall deal with them briefly in turn:

Jackson Rossiter. He is the Defendant’s son, now aged 22. He has a younger brother, Leon. Jackson was not at home in the period January – April 2012. He was away working in Austria. He was not surprised by what he saw on the videos. He said it happened fairly often after a long period in bed. This would be perhaps once a month. Then the rest of the month his mother would be in bed or there would be days here and there when she was in bed. He said that he had cared for his mother and that when he was away he understood that neighbours were looking after her. He had been offered a chance to work in Austria between January and April 2012, his mother had encouraged him to go. He had seen first hand his mother’s physical illness and her vomiting which led in his opinion to her mental state deteriorating. It was put to him by Mr Featherby QC whether he thought he had been manipulated by his mother. He said he did not believe he had been. For the record I reject any suggestion of deliberate and dishonest manipulation by the Defendant of her son in this manner. Finally, I asked Jackson Rossiter some questions. I asked whether he had seen her expressing happiness in the period 2011 – 2012. He impressed me by not overstating the case. He said on rare occasions he had.

Ann Richards gave me accounts of the Defendant prior to the accident as a “bright outgoing and intellectual person. Everything was always perfect with her appearance. She took great care over her bright red hair and her lipstick and makeup was always perfect. She had a very vivacious personality.” She accepted that she had been aware that the Defendant was on anti-depressant medication pre accident. However this did not change her account of her description of the Defendant. From the questions put to her it is clear that there had been other problems in the Defendant’s life pre 2008, but Ms Richards was not aware of all of these. Nevertheless she stuck by her general description of the Defendant pre accident. In the period Autumn 2011 to Spring 2012 she tried to see the Defendant once a month but it did not work out. She would see her about once every two months in a period and call her every two to three weeks. She was not surprised by the DVD. She knew that the Defendant had good and bad days. She said that at times the Defendant was bedridden and unable to lift her arms above her head. She said she was relatively housebound. When she was on the telephone to her, if the Defendant was having a good day then there would be a fluid conversation. She would express guilt as to how much her boys were having to do for her. She could not remember the Defendant laughing or being joyous or taking pleasure from life since 2010.

Sarah Cochran had known the Defendant from September 2007 and was a close friend/confidante. She knew that the Defendant had taken anti-depressants prior to the accident. Nevertheless she also said that the Defendant had been a bright, breezy and wonderful person. They were both excited that they were starting a new career at that stage. She could recall only meeting the Defendant once in late 2011 early 2012. Lots of arrangements were made to meet but the Defendant pulled out of them. They had spoken on the telephone in this period. They met at the end of the summer (August/September 2011) at the café Nero in Truro. She said she was shocked by the Defendant’s appearance on the DVD. She was asked why she was so shocked, given that she had seen the Defendant in the late summer of 2011. She said the DVD was a harsh shock/reminder. It was put to her that she was being untruthful to help a friend. She denied this and I accept her denial.

For the above reasons, although there are a number of instances of false/inaccurate statements as detailed above, I do not accept that the Claimants have proved beyond reasonable doubt that the Defendant made those statements dishonestly and therefore the application fails.

she was confined to bed for three weeks a month (to Dr Neal)

she tended to be fairly inactive at home, often spending days at a time in bed (to Mr Smith)

she was confined to bed (to Dr Briscoe)

she spent most of her time on a sofa (to Dr Briscoe)

she rarely left the house and very often rarely left the bed (in her witness statement)

staying in bed had become a way oflife (in her witness statement)

she was effectively bed- and housebound (in Ms Cochran's witness statement)

she went for weeks at a time when she did not even leave the bed, let alone leave the house, remaining in bed for five weeks at a time (to Dr Blacker)

she had very long periods when she could not get out of bed at all (to Dr Blacker)

on better days she could get out of bed and she would then sit on the sofa all day and read and watch television, however, most of the time she was in bed (to Dr Blacker)

she no longer left the house (to Dr Neal)

she found it difficult to get out and about (to Dr Briscoe)

she rarely left the house and very often rarely left the bed (in her witness statement)

she was effectively bed- and housebound (in Ms Cochran’s witness statement)

she was unable to leave the house (to Dr Blacker)

she went for weeks at a time when she did not even leave the bed, let alone leave the house, remaining in bed for five weeks at a time (to Dr Blacker)

she left the house rarely and, at most once or possibly twice a week (to Dr Blacker)

she always needed accompanying when she went outside (to Dr Blacker)

she had ongoing and severe neck and head pain, arm pain, shoulder pain, back pain and depression with no evidence of improvement (to Mr Smith)

she had a continuing need for painkillers (in first and second Schedule of Loss)

she suffered extreme exhaustion (in her witness statement)

she was afraid to go out most of the time, the times when she did were carefully planned (in her witness statement)

she was in agony all the time (to Dr Blacker)

she felt she would fall to the right side, injuring herself frequently from falling over (to Dr Neal)

she had poor balance, regularly falling over as the result of balance problems (to Mr Smith)

she did not like going out because she felt wobbly, and worried that she might fall (to Dr Briscoe)

her legs felt as if they did not work (to Dr Neal)

her arms were incapable of most tasks (to Mr Smith)

she could not lift her shoulders up (to Mr Smith)

on examination, all her movements were slow and deliberate (to Mr Smith)

on examination, she demonstrated marked restriction of movement (to Mr Smith)

she had difficulty using her fingers and wrists; her elbows and arms had very little strength (to Dr Briscoe)

she could not lift her arms above shoulder height without extreme pain (in her witness statement)

the muscles throughout her body had become very weak indeed, with simple movement without any weight like bending her arm or even moving her wrists or fingers hurting a great deal (in her witness statement)

her walking distance is just a few yards (to Mr Smith)

she could not manage stairs (to Mr Smith)

she needed care from her son (to Mr Smith)

she needed and used a commode (to Mr Smith)

her son had had to defer a university course because she needed his care (to Dr Briscoe)

her son was her full time carer (in her witness statement)

she needed care fo 35 to 70 hours a week (in second Schedule of Loss)

she was almost wholly dependent upon her two sons to provide the care and assistance she required (in her second Schedule of Loss)

she had had to rehome her dogs because she could not walk them (to Mr Smith)

she could not now assist at all with DIY and was physically incapable of carrying out any degree of what she was capable of before (in the first and second Schedules of Loss)

she would very occasionally walk the dogs (to Dr Blacker)

she was not able to do any housework at all, most of it being done by her sons (to Dr Blacker)

she could do very, very little at home (to Dr Blacker)

she no longer had a social life (to Dr Neal)

the statement or representation was false;

the statement or representation, if persisted in, would have interfered with the administration of justice in that it would have caused the Defendant to be awarded more damages than she was entitled to;

at the time she made the statement or representation she had no honest belief in its truth;

at the time she made the statement or representation she knew that it would be likely to interfere with the administration of justice.